Is it time to file a Provisional Application for Patent?

You may have heard that a provisional patent can help you protect your new invention but you don't quite understand how it works. So what do you need to know before plunking down your dough? Here is the skinny on when to file one.

by Heleigh Bostwick
updated May 11, 2023 ·  3min read

Inventors are often faced with a dilemma. Think about it. Say you've invented something that the world has never seen--something so revolutionary that you just know it's going to become a huge success. As you think to yourself, "There's money to be made here!" you also realize that your invention needs a little real world testing and to do that you need to find a potential manufacturer. But what if the manufacturer steals your idea? How do you protect yourself from being ripped off?

For many inventors the answer lies in filing a provisional application for patent. If you've ever heard the term "patent pending", then you've heard of provisional applications. The flip side however, is that a provisional application is not always necessary. What do you need to know before spending your time and money? Well, read on and we'll tell you!

Why provisional applicationss are a good idea...

Reason # 1: A provisional application for patent offers a simplified and much lower cost option than filing  a non-provisional (sometimes called "full") utility patent application right out of the gate. All you need is a cover sheet, a detailed description of the invention explaining how it is made and how it is used--including drawings if necessary to understand the invention--the name(s) of the inventors, and the filing fee.

Reason # 2: A provisional application for patent, which is good for a period of 12 months, allows you to label your invention "patent pending" for the entire provisional period and gives you that time to begin seeking funding or doing market research. Also, "patent pending" puts anyone who might try to copy your invention on notice that you may receive a patent on that invention and that they would then be liable for infringing your patent starting the day you file your provisional application.

Reason # 3:. If you file a non-provisional patent application within the 12-month provisional period, you can claim the filing date of the provisional application as the filing date of your patent. This assumes particular importance in instances where others have applied for patents on similar inventions. It also extends the life of your regular patent from 20 to 21 years since a regular utility patent is good for 20 years from the date of its filing.

But please also remember...

1. You should not think a provisional application automatically becomes a full regular patent grant--because it doesn't. For you to receive full patent protection for your invention, you will have to file a non-provisional utility patent application, either within 12 months of your provisional application (to take advantage of the early filing date) or anytime you want—you can file a non-provisional application right off the bat, if you're ready.  You can also let your provisional application expire and re-file either another provisional application (getting you another 12 months of “patent pending” status) or non-provisional utility patent application.  In other words, you have lots of options.

2. In most cases, filing a hastily-put-together provisional application is not recommended. The wording may be quite vague in these applications and possibly the invention is not well thought out. Filing an application with insufficient or incorrect details can lose you the priority filing date afforded by your provisional application. Also, if you want to receive that early filing date, the invention described in your provisional application will have to match fairly closely the invention contained in your corresponding non-provisional application—practically, this means that the examiner in charge of your file will have to be able to recognize the inventions as the same.

3. Provisional applications do not cover design patents. When your invention covers the appearance of a functional object rather than the function of the object itself, you may qualify for a design patent. Again, provisional applications for design patents are not allowed or accepted.

For many, a provisional application for patent is the best way to start protecting an protect an invention. So, are you ready to get started?

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Heleigh Bostwick

About the Author

Heleigh Bostwick

Heleigh Bostwick has been writing for LegalZoom since 2006, touching on topics as diverse as estate planning and kids, c… Read more

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.